Administrative Probity and Transparency in Public Administration: A Guide to Principles and Practices

Posted on Nov 4, 2024 in Law & Jurisprudence

Probity refers to honest, spotless, and fair conduct in the performance of public functions or positions, prioritizing the public interest. Corruption, on the other hand, involves the misuse of public office for personal gain. Disabilities in public office can include:

  • Prior convictions or bad conduct leading to deposition.
  • Condemnation for crimes or offenses resulting in disqualification.
  • Conflicts of interest arising from relationships with contractors, litigants, or family members.

Declarations of interest are mechanisms to prevent conflicts of interest. Professional activities encompass any profession or occupation, paid or unpaid, regardless of the legal nature of the employment. Economic activity refers to any industry, commerce, or activity that generates income or economic benefits, including participation in legal entities or non-profits. Statement of heritage is a transparent mechanism for public officials to disclose their assets and liabilities. It should include a full identification of assets and liabilities (up to 100 UTM). If the declarant is married under a regime of marital assets, the statement must include the assets of their spouse.

Specific behaviors that contravene the principle of Administrative Probity include:

  • Using confidential information for personal gain.
  • Misusing official position to influence others for personal or third-party benefit.
  • Misusing institutional funds, property, or resources for personal or third-party gain.

Transparency ensures that the State Administration is accountable to the public by providing information about its operations, decisions, and processes. This allows for evaluation, monitoring, and participation in governance. Transparency also discourages misconduct by exposing public servants to potential sanctions and social censure.

Transparency is regulated by:

  • The principle of public transparency.
  • The right to information.
  • Procedures for exercising the right to information.
  • Access to public information.
  • Legal grounds for confidentiality or secrecy.

Active transparency is the legal duty of state organs to maintain updated information on public websites. Passive transparency grants everyone the right to request and receive information from any state organ.

Grounds for refusal of access to information (Article 21 Law No. 20 285):

  • When disclosure affects the proper performance of the executing authority’s functions, particularly:
    • If it hinders the prevention, investigation, or prosecution of a crime or offense.
    • If it relates to background or discussions prior to the adoption of a resolution, measure, or policy (although these become public once adopted).
    • If it involves generic requirements, a large number of administrative acts, or unduly distracts enforcement officials from their regular work.
  • When disclosure affects the rights of individuals, particularly:
    • Their safety, health, private or commercial rights, or economic interests.
  • When disclosure affects the security of the nation, particularly:
    • If it relates to national defense, the maintenance of public order, or public safety.
  • When disclosure affects the national interest, especially:
    • If it relates to public health, international relations, or economic and commercial interests of the country.
  • In the case of documents, data, or information declared confidential or secret by law, according to the grounds specified in Article 8 of the Constitution.

The need for a quorum Act to establish the confidentiality or secrecy of administrative acts or decisions: there is no single law or regulations.

Principles of access to information:

  • Principle of relevance: It is presumed that state administration organs possess any relevant information, regardless of format, medium, creation date, origin, classification, or processing.
  • Principle of freedom of information: Every person has the right to access information held by state administration organs, with only exceptions or limitations established by law.
  • Principle of openness and transparency: All information held by state administration organs is presumed public unless subject to exceptions.
  • Principle of maximum disclosure: State administration organs should provide information as broadly as possible, excluding only information subject to constitutional exceptions.
  • Principle of severability: If an administrative act contains both accessible and withheld information, access should be granted to the former.
  • Principle of facilitation: Mechanisms and procedures for accessing information should facilitate the exercise of this right, avoiding obstructive requirements.
  • Principle of non-discrimination: State administration organs should provide information to all requesters on equal terms, without arbitrary distinctions or requirements for justification.
  • Principle of opportunity: State administration organs should provide answers to information requests within legal deadlines, as quickly as possible, and avoid dilatory procedures.
  • Principle of control: Compliance with rules governing the right to access information should be subject to permanent audit, and decisions made during information requests should be admissible in an external body.
  • Principle of responsibility: Breaches of obligations imposed by this law on the State Administration entail responsibilities and sanctions under this Law.
  • Principle of free access: Access to information from state administration organs is free, with only costs for reproduction and other legally authorized charges for delivery of certain information.